Court Opinions: Colorado Court of Appeals Opinions for Oct. 5

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

People v. Nathan Hollis

Nathan Hollis appealed the district court’s order requiring him to pay restitution for “buy money” — money spent by law enforcement during undercover drug deals with Hollis. At issue was whether, under Colorado’s restitution statute, this buy money qualified as “money advanced by law enforcement agencies” for a victim’s pecuniary loss or an “extraordinary” public investigative cost — Colorado Revised Statute 18-1.3-602(3). The Colorado Court of Appeals concluded it was neither, and in doing so it disagreed with the holding of another division of the appeals court in People v. Juanda. The Colorado Court of Appeals vacated the district court’s restitution order.

According to the opinion, the Weld County Drug Task Force regularly conducts “controlled buys,” in which an undercover officer purchases drugs from a suspect. The task force has a specific budget for “buy money,” which it uses for such transactions. An officer at Hollis’ restitution hearing testified the task force conducts between five and 10 controlled buys per month.

The task force conducted several controlled buys with Hollis over the course of several days, and each time Hollis was permitted to leave with the “buy money.” After his eventual arrest, the task force searched Hollis’s home, but none of the buy money was recovered, the opinion noted. 

Hollis pleaded guilty to two counts of distribution of a controlled substance and was sentenced to concurrent nine-year terms in the custody of the Colorado Department of Corrections.

According to a footnote, these pleas were in two separate Weld County cases.

The district court then ordered Hollis to pay restitution to the task force for the unrecovered buy money.

Hollis contended section 18-1.3-602 doesn’t specifically allow restitution for “buy money.” The people countered “buy money” qualifies both as “money advanced by law enforcement agencies” under section 18-1.3-602(3)(a) and as an “extraordinary” direct public investigative cost under section 18-1.3-602(3)(b). The Colorado Court of Appeals agreed with Hollis.

The order was unanimously vacated.

People v. Cedar Mortenson

Cedar Mortenson appealed the judgment of conviction entered on a jury verdict finding her guilty of aggravated robbery. Because the prosecution didn’t present evidence of a taking under the robbery statute — a taking that must be from the person or presence of another by force  — the Colorado Court of Appeals vacated her aggravated robbery conviction and remanded with directions. In doing so, the appeals court confronted an issue that has percolated for many years in Colorado case law with mixed results: when it vacates a conviction on a greater offense for insufficient evidence, but the evidence is sufficient to support a conviction for a lesser included offense, should the appeals court remand the case to the district court with instructions to enter a judgment of conviction on the lesser included offense (in this case, attempted aggravated robbery)?

According to the opinion, the Colorado Supreme Court has never mandated appellate courts to enter a judgment of conviction on a lesser included offense that is necessarily implied in a jury verdict vacated due to insufficient evidence, citing the decision Halaseh v. People. Instead, the appellate court may exercise its discretion to determine whether entry of conviction on the lesser included offense would be appropriate under the given circumstances. Based on the facts of this case, in which the jury wasn’t instructed on the lesser offense and the record supports an “all-or-nothing” strategy chosen by both the prosecution and defense, the Colorado Court of Appeals exercised its discretion and declined to direct the district court to enter a judgment of conviction on the lesser included offense on remand. Because Mortenson’s aggravated robbery conviction was her most serious offense, the court may reconsider the sentences for her remaining convictions, the opinion noted. 

At trial, the prosecution’s evidence would have allowed the jury to find the following facts. The opinion explained Mortenson placed about $90 worth of Target items in her purse and proceeded to the store exit without paying for them. As she stepped through the first of two sets of sliding glass doors, she was confronted by the victim, Keith Williams, an undercover Target “asset protection specialist.” When Williams stepped toward her, Mortenson backed into a corner of the exit vestibule and reached inside her shirt. In the same moment Mortenson pulled out a gun, Williams closed the gap between them. He quickly wrestled Mortenson to the ground, face down and a uniformed security guard arrived to assist. After a two-minute struggle, the two Target employees were able to disarm and handcuff Mortenson in the vestibule. They recovered the Target items from her purse and the police were called.

Mortenson was tried on charges of aggravated robbery of merchandise from the person or presence of Williams with a deadly weapon — CRS 18-4-302(1)(d); felony menacing; false reporting to authorities; and theft from Target. The jury found Mortenson guilty as charged.

Mortenson didn’t testify at trial. Her two theories of defense were she pulled a gun to defend herself against an unidentified person blocking her path, and the prosecution hadn’t proved a taking by the use of force. On appeal, Mortenson challenged only her aggravated robbery conviction. She contended there was insufficient evidence to support that conviction because there was no evidence showing a robbery taking occurred and prosecutorial misconduct in the closing argument mandated reversal. 

After evaluation by the appeals court, the judgment of conviction for aggravated robbery was vacated. Because the appeals court vacated only one of Mortenson’s convictions — her most serious offense — the district court may, in its discretion, resentence Mortenson on her remaining convictions on remand, citing the decision People v. Johnson.

Those portions of the judgment not challenged on appeal — Mortenson’s convictions for felony menacing, false reporting to authorities and theft — are unaffected by this opinion.

Judge John Dailey concurred in part and dissented in part.

“I concur in all but one part of the majority’s opinion. In the last section of its opinion, the majority vacates Mortenson’s conviction for aggravated robbery and elects, in its discretion, not to remand for entry of judgment on the lesser included offense of attempted aggravated robbery. I would have made a different election,” wrote Dailey. 

Andrew Brookhart v. Mark Reaman

Four individuals asked the Gunnison County Library District to remove a book titled “Gender Queer: A Memoir” from the shelves of the Gunnison County Public Library or, alternatively, to prevent children from accessing it. The requesters used the library district’s own “Request for Reconsideration of Materials” form to submit their requests. The library makes the reconsideration form available to the public through its website. Any person may complete and submit a reconsideration form to the library district to ask an item be removed from the library’s collection or access to the item be restricted.

Mark Reaman, in his capacity as the editor of the Crested Butte News, submitted a request under the Colorado Open Records Act, to the library district to obtain unredacted copies of the requesters’ reconsideration forms. The library district responded by filing this case in district court, with its executive director and custodian of records, Andrew Brookhart, as the named plaintiff, to obtain guidance on how it should respond to Reaman’s CORA request. That statute allows “the official custodian of any public record” to “apply to the district court of the district in which such record is located for an order permitting him or her to restrict . . . disclosure [of the record] or for the court to determine if disclosure is prohibited,” if, for purposes of this case, “the official custodian is unable, in good faith, after exercising reasonable diligence, and after reasonable inquiry, to determine if disclosure of the public record is prohibited” under CORA — 24-72-204(6)(a).

The district court entered an order holding Reaman was entitled to obtain the requesters’ reconsideration forms, but only with the requesters’ identifying information redacted. The court concluded such identifying information needed to be withheld from disclosure under section 24-72-204(3)(a)(VII) of CORA; CRS 24-90-119(1), which protects the privacy of library user records; and Tattered Cover, Inc. v. City of Thornton, in which the Colorado Supreme Court held the government can’t compel a bookseller to turn over records of an individual’s book purchases. After issuing the order, the court entered a final judgment. Reaman appealed the judgment.

The narrow, but important, issue before the Colorado Court of Appeals was whether the library district is required to keep the requesters’ identifying information confidential under section 24-90-119(1), which prohibits the disclosure of “any record or other information that identifies a person as having requested or obtained specific materials or service or as otherwise having used the library.” 

The Colorado Court of Appeals affirmed the judgment, albeit on slightly different grounds from those on which the district court relied.

Judge Taubman dissented. 

“I agree with the majority that this case raises the narrow, but important, question of whether a library district is required to keep confidential the identifying information of individuals requesting that the library district remove or restrict circulation of a book they find objectionable. Although the majority addresses the merits of this dispute, I do not believe we should do so because the Gunnison County Library District has changed its position in this appeal, now agreeing that the identifying information should be disclosed, thus eliminating a case or controversy between the parties. Accordingly, I would dismiss the appeal and vacate the district court’s judgment. Therefore, I respectfully dissent,” wrote Taubman. 

Farmers Insurance Exchange v. Alicia Kretzer et al.

In this insurance coverage dispute, Alicia Kretzer and Nathan Kretzer appealed the district court’s entry of summary judgment in favor of Farmers Insurance Exchange. Because the Colorado Court of Appeals agreed with the district court that the insurance policy at issue unambiguously excludes one of the defendants from coverage and the exclusion isn’t prohibited by statute, it unanimously affirmed the judgment.

Farmers issued an auto insurance policy for Alicia and Nathan Kretzer, a married couple. After underwriting issues arose, Nathan Kretzer opted to modify the policy. He maintained coverage for himself but signed a “Named Driver Exclusion Endorsement” that excluded Alicia Kretzer from all coverage. The exclusion endorsement by its terms was made “a part of the [modified] policy.” Nathan Kretzer renewed the policy about four months later. The “Declaration Page” of the renewed policy expressly identifies Alicia Kretzer as an “excluded” driver. The parties agreed the exclusion endorsement is part of the renewed policy. 

The renewed policy lists two insured vehicles: a 2012 Jeep Wrangler and a 2015 Subaru Forester. In pertinent part, the renewed policy provides Nathan Kretzer with liability coverage, uninsured and underinsured (UM/UIM) coverage and Medpay coverage. 

After Nathan Kretzer signed the exclusion endorsement and purchased the renewed policy, Alicia Kretzer was involved in a car crash. Alicia Kretzer was driving her separately insured 2016 Jeep Patriot when it collided with a vehicle driven by a tortfeasor on the wrong side of the highway. Alicia Kretzer sustained serious injuries and substantial medical bills. She received the policy limit from the tortfeasor’s liability insurer. The tortfeasor, however, was underinsured; his policy covered only a small portion of Alicia Kretzer’s total damages.

The Kretzers made a claim against Farmers under Nathan’s policy for UM/UIM and Medpay benefits for Alicia Kretzer. Farmers denied the request. It maintained the exclusion endorsement precluded Alicia Kretzer from all coverage.

Farmers filed a complaint for a declaratory judgment to this effect. The Kretzers filed counterclaims, including one seeking a declaratory judgment that Farmers owed Alicia Kretzer UM/UIM and Medpay benefits. Farmers moved, and the Kretzers cross-moved for summary judgment.  

In a written order, the district court concluded no facts were in dispute, granted summary judgment in favor of Farmers and denied the Kretzers’ cross-motion. The district court said that “without running afoul of public policy and consistent with the bargained-for exchange entered into by the Parties, [Farmers] does not need to provide UIM and Medpay coverage to [Alicia], a person expressly excluded from coverage under [Nathan’s] policy.” Further, the district court rejected the Kretzers’ assertion that pursuant to CRS 10-4-630(2), the general assembly intended named driver exclusions to apply only “to claims arising out of the operation or use of an insured motor vehicle listed on the policy.”

On appeal, the judgment was unanimously affirmed.

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